Malone v. Kramer

The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS

[Doc. 2]

Petitioner is a state prisoner proceeding with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.*fn1 Petitioner is represented by Charles M. Bonneau, Jr., Esq.

RELEVANT HISTORY

On May 13, 2004, following a jury trial in the California Superior Court, County of Kern, Petitioner was convicted of second degree murder (Cal. Pen. Code § 187(a))*fn2 and unlawful possession of a firearm by a felon (§ 12021(a)(1)).

On June 28, 2004, Petitioner was sentenced to an indeterminate term of 15 years to life for murder, and a concurrent term of three years for unlawful possession of a firearm. (CT 140, 1143-1144.)

Petitioner filed a timely notice of appeal with the California Court of Appeal, Fifth Appellate District. On December 19, 2005, the Court of Appeal modified Petitioner's sentence, however, the conviction was affirmed in all other respects. (Lodged Doc. No. 1.)

On January 22, 2006, Petitioner filed a petition for review in the California Supreme Court, which was denied on March 15, 2006. (Lodged Doc. No. 2.)

On August 23, 2006, Petitioner filed a state petition for writ of habeas corpus/and or writ of coram nobis in the Kern County Superior Court. The petition was denied on October 13, 2006. (Lodged Doc. No. 3.)

On or about April 19, 2007, Petitioner filed a petition for writ of habeas corpus in the California Supreme Court, which was denied on September 25, 2007. (Lodged Doc. No. 4.)

Petitioner filed the instant federal petition for writ of habeas corpus on May 21, 2007. (Court Doc. 1.) Respondent filed an answer to the petition on February 1, 2008, and Petitioner filed a traverse on February 25, 2008. (Court Docs. 12, 14.)

Kevin Johnston is a farmer. On May 1, 2002, at approximately 8:30 a.m. he was driving to his property to get gas. He passed three semi-trucks parked on the side of the road. Two of the trucks were red, and one was white. While on his property getting gas, he heard a pop. Shortly thereafter he returned, driving the same route. The trucks were gone, but Johnston saw the body of a woman. Johnston called 911.

Emergency personnel arrived on the scene. The victim, Anna Marie Michaels, was transported to the hospital where she was pronounced dead. At the scene officers found a bullet and a copper jacked from the bullet. In addition, a pair of crutches was found several miles east of where the body was found.

The victim had been shot once. There was an entrance wound in the nape of her neck and an exit wound in the front of her neck. She bled to death as a result of the gunshot wound. She had methamphetamine and amphetamine in her system when she died. It was noted that the victim was an amputee; the amputation of her leg was completely healed and was not a result of the incident leading to her death.

The victim was described as a "lot lizard" in the Bakersfield area. "Lot lizard" is a term used for prostitutes and drug dealers who frequent truck stops. She was known in the trucking world as Texas Queen, and she used that name when she conversed on citizen band (CB) radios.

At the time of the killing, [Petitioner] was a truck driver for D & A Trucking in Alabama. He would usually haul chickens from Alabama to Bakersfield. He would pick up produce in Bakersfield and haul it back to Alabama. His CB name was Thunder Chicken. His wife's name is Brenda.

On April 30, 2002, [Petitioner] and Lisa Johnson picked up a load of carrots at Bolthouse Farms in Bakersfield. The shipment's destination was at Piggly-Wiggly in Alabama.

In late April of 2002 the victim called James Howerton to broker a drug deal. Howerton met the victim at the truck stop. She introduced him to [Petitioner]. [Petitioner] gave Howerton cash for a drug deal and [Petitioner], Howerton, the victim, and another woman drove to a prearranged location. Howerton left the location with his cut of the money before the drugs arrived. The drugs were not delivered.

Amanda Chunn (Butter Bean) accompanied Robert Monsignore (Two Speed) to Bakersfield in his truck. When they got to Bakersfield, they met up with [Petitioner] and Lisa Johnson (Little Lisa/Cornbread) at the truck stop. Monsignore had money invested with [Petitioner] in the drug deal and was angry that they were "burned."

[Petitioner] and Johnson got in the truck with Chunn and Monsignore. Chunn heard [Petitioner] talking to Monsignore. [Petitioner] said a woman had "ripped him off" for drugs and he would get her. [Petitioner] said that he had a girl in his truck who was going to help him get the woman out of her house. Chunn and Johnson left in Monsignore's truck headed for Barstow. [Petitioner], Monsignore and the girl left the truck stop in one truck; they were accompanied by a red Volvo truck and a white Peterbilt truck. Johnson and Chunn arrived in Barstow. Monsignore, [Petitioner], and the girl arrived at least an hour later in [Petitioner's] truck.

Tony Bedford was a dispatcher at D & A Trucking. He and [Petitioner] worked together. [Petitioner] had offered to sell him a couple of guns, including a nickel-plated revolver. Bedford was not interested. Sometime in mid-May 2000 [Petitioner] asked Bedford to retrieve a gun he had hidden in the spare tire rack under his pickup truck. Bedford did not retrieve the gun.

Bill Mills (Bad Habit) was a truck driver at D & A Trucking. [Petitioner] told Mills that he had a problem in Bakersfield. He was going to make a drug purchase and the woman took his money but he did not get the drugs. He said that he followed the woman, grabbed her, argued with her in the truck, pushed her out of the truck and shot her two times in the head.

Law enforcement from Kern County traveled to Alabama to interview witnesses. On May 22, 2002, while they were in Alabama, Rick Thomas gave officers the gun he had retrieved from [Petitioner's] pickup truck. The bullet jacket found near the victim was fired from the gun retrieved from [Petitioner's] pickup truck.

[Petitioner] was arrested on May 23, 2002 in California. His truck was stopped. The occupants of the truck were asked to get out. Johnson got out of the truck. Officers asked several times for the other person ([Petitioner]) to get out of the truck. They finally used pepper ball shots and [Petitioner] exited the truck.

[Petitioner] was taken to the police station. When he was asked his name, he said his name was Calvin Johnson. He waived his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436) and talked to Sergeant Joseph Giuffre. A tape of this interview was introduced at trial.

[Petitioner] was asked why he gave the name of Calvin Johnson. He said he and Lisa Johnson did not know what was going on. He said the last time he went through Bakersfield was approximately two months ago. [Petitioner] said he knew the victim (Texas Queen) and the last time he had seen her was at a truck stop in Bakersfield in the eighties. On further questioning, [Petitioner] said he might have seen her in 1996 or 1997. He said he did not give the victim a ride the last time he was in Bakersfield. He said he had no reason to be upset with her. He denied any involvement in her murder.

James Garza shared a cell with [Petitioner] in jail for several days. [Petitioner] told Garza that he was in jail for murder but he could beat his case because he had records to show he was not present at the time of the murder. He also told Garza that he hid the gun underneath his truck. [Petitioner] said that he had given the victim money for dope, but he got burned. After she took his money, he went looking for her. He described where he found her. At trial, Garza testified that [Petitioner] never said he killed the victim. Garza was impeached with his previous statement that [Petitioner] had told him he shot the victim. Garza was given leniency on his sentence for this information.

[Petitioner] had several telephone conversations from jail with his wife Brenda, and also with Rick Thomas, the individual who turned the gun over to police. Tapes of portions of these conversations were played for the jury.

In the first conversation Brenda said "they" asked me some questions about California. She told [Petitioner] that she told them she did not know anything. She told [Petitioner] she said to "them," "All I know is we got ripped of $1,300, one's down, one's (inaudible... That's all I know." Immediately following this comment, [Petitioner] said "I wished you wouldn't have said that." [Petitioner] asked Brenda, "Well then did they find ah the thing?" Brenda replied, "I don't know cause when I got home, they already had it."

The portion of the conversation between Brenda and [Petitioner] from the next day was played as follows:

Brenda: Robert [Monsignore] didn't tell the same story you told me last night or whatever.

Michael [Petitioner]: I know, but what did he tell the cops? Brenda: That's where your pushing came in.

Michael: He told the cops?

Brenda: Pushing, yeah.

Michael: On [sic], the bitching mother fucker. Oh, he might as well get ready then cause he's gonna be my next door mother fuckin neighbor. Ratten' ass mother fucker.

Michael: Well, that's the reason I got picked up then because of Robert. Brenda: It is?

Michael: Yeah. And Rick sat there and told me and swore to me that Robert wouldn't never say nothin' like that.

Brenda: I know they're on the outs now.

Michael: Well you need to talk to Rick and ah talk to Robert and ah, ah, tell him ah to where his mama's at, and forget about everything.

Brenda: All right.

Michael: Cause if it, if he don't show up to testify then I don't, if, if I don't have nobody to testify against me then ah, ah they got to drop it. But I don't know what the fuckin deal is with Bruce Sims.

Brenda: I don't either. (Inaudible) said he'll be the one taken the (inaudible).

Michael: Well Russell needs to go down there and get the God damn phone book and call that number I told you and tell and tell him what Robert's doin'. Cause Robert's fixin to get his shit, get his ass in some shit.

[Petitioner] had a conversation with Rick Thomas and Brenda on June 7, 2002. In that conversation he spoke to Rick about keeping Robert from moving to California. [Petitioner] talked about keeping Robert and Lisa out of California because if they are not "here...then they ain't got shit."

In a conversation on June 10, 2002, [Petitioner] dictated a story to Brenda involving Lisa and [Petitioner's] activities on the morning of the killing, as well as how Robert had access to [Petitioner's] pickup truck and that is how the gun ended up there.

Defense Case

Several witnesses testified for the defense implicating Dale Carter (Lickity Split) as the person who killed the victim. Witnesses testified that Carter was mad at the victim because she had ripped him off. Others testified that Carter said he had killed her. Other witnesses testified that Garza had made up his testimony at trial.

After May 1, 2002, Carter changed the seats and flooring in his truck.

It was the opinion of a retired fire captain that the victim's body was dumped at the location where it was found and that the dumping location was not the scene of the shooting. He believed that there was not enough blood at the scene where the body was dumped for it to be the scene of the shooting.

It was stipulated that Robert Monsignore (Two Speed) told a detective in an interview that he, William Arnold, and a woman (not Lisa Johnson or Amanda Chunn), drove in a red truck to the victim's house. The woman brought the victim to the truck. Monsignore and Arnold took her to where she was killed.

Lisa Johnson testified that she knew [Petitioner] and drove with him to Bakersfield. They picked up their load at Bolthouse Farms and spent the night in Bakersfield at the truck stop. While at the truck stop the victim asked to use [Petitioner's] CB radio. While the victim was in the truck, Dale Carter jumped up on the side of the truck and yelled at the victim. He wanted his money. He told her she had until 6 o'clock the next day to come up with the money or the Banditos (a motorcycle gang) would get her. [Petitioner] told Carter he didn't want any trouble and Carter left. The victim was terrified. [Petitioner] told the victim nothing would happen to her as long as she was in his truck. The group in the truck used methamphetamine.

Johnson did not see the victim again. Johnson wanted to leave Bakersfield and [Petitioner] wanted to stay and party. Johnson and [Petitioner] argued. Johnson left the truck stop at 9 a.m. with Chunn driving Monsignore's truck. They arrived in Barstow and [Petitioner] and Monsignore arrived approximately 30 minutes later.

Rebuttal Evidence

Investigator Mosley said he interviewed Garza. Mosley did not threaten Garza or make any promises regarding his statements of what [Petitioner] had told him.

Johnson was with [Petitioner] when he was arrested several weeks after the crime. When initially interviewed, Johnson did not say anything about Carter. Johnson brought up Carter's name after she had contact with Brenda ...

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